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*Nina N. Batista

On April 17, 2019, a lot changed for United States nationals with ties to land in Cuba. On March 12, 1996, Congress enacted the Cuban Liberty and Democratic Solidarity Act (LIBERTAD) of 1996, commonly referred to as the Helms Burton Act. [1] The Act seeks to “protect United States nationals against confiscatory takings and the wrongful trafficking in property confiscated by the Castro regime,” the most notorious leader of the Cuban nation. [2] Additionally,  not only does trafficking in the confiscated land generate a financial benefit for the trafficker himself, the Cuban government also generates a significant financial benefit.[3] Money in the pockets of the Cuban government substantially undermines the foreign policy of the United States.

To this end, and in order to protect U.S. nationals from the grasp of communism, Congress sought to provide these individuals with a judicial remedy—a private right of action against any person who “traffics” in the property confiscated by the Castro regime.[4] Specifically, under Title III of Helms-Burton Act, “any person that . . . traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages.”[5]

However, until very recently, the Helms Burton Act had never actually been applied.[6] Shortly after Title III was enacted, the President invoked its waiver provision every six months, meaning no person could seek remedy under Title III.[7] This changed on April 17, 2019, when the U.S. Department of State announced the relinquishment of the suspension of Title III. [8] Courts have since been flooded with Title III actions.[9]

However, in order to bring a valid claim under the Helms Burton Act, the U.S. national must show he owns a claim to the confiscated property.[10] Showing ownership is relatively easy when the claim to the confiscated property was certified by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949.[11] The challenge enters when a U.S. national brings a Title III action absent a certified claim to the confiscated property. In fact, although there are 5,913 certified claims by U.S. citizens from the 1960s, the U.S. government estimates there could potentially be around 200,000 uncertified claims.[12]

This poses an interesting question, one facing many courts today. What does a U.S. national with an uncertified claim have to plead and ultimately prove to be successful on a Title III action?[13] While one claim may be grounded in a certification, a deed, or documented piece of paper showing the legitimacy of the person’s claim, another may be only grounded in inheritance, a lease to property, or some other more abstract idea of ownership, one that is not confined to the four corners of a document. Courts are now tasked with the responsibility of establishing boundaries and drawing lines for what it means to own a claim to confiscated property when there is no piece of paper proving their ownership. In the words of Michael Kelly, a professor of law at Creighton University in Nebraska, “it will be interesting to see, after all these years, what kind of evidence the new claimants can produce.”[14]

* J.D. Candidate, May 2020, Florida International University College of Law

[1] 22 U.S.C. §§ 6021–6091 (2018).

[2] § 6081(6)(B).

[3] § 6081(6)(B); Garcia-Bengochea v. Carnival Corp., No. 1:19-cv-21725-JLK, 2019 WL 4015576, at *1284 (S.D. Fla. Aug. 26, 2019).

[4] § 6082(a)(1)(A).

[5] Id.

[6] See Garcia-Bengochea, 2019 WL 4015576, at *1284 (citing Odebrechet Const., Inc. v. Prasad, 876 F. Supp. 2d 1305, 1312 (S.D. Fla. 2012) (“Title III has since been waived every six months . . . and has never effectively been applied.”)).

[7] Garcia-Bengochea, 2019 WL 4015576, at *1284.

[8] Id. (citing U.S. Department of State, Secretary of State Michael R. Pompeo’s Remarks to the Press (Apr. 17, 2019), https://www.state.gov/remarks-to-the-press-11/).

[9] David C. Adams, Trumps Cuban Policy Produces Thorny Legal Issues for U.S. Companies, Univision (Jan. 15, 2010, 8:41 PM), https://www.univision.com/univision-news/latin-america/trumps-cuba-policy-produces-thorny-legal-issues-for-u-s-companies??.

[10] 22 U.S.C. § 6082(a)(1)(A).

[11] § 6082(a)(1)(A)(i).

[12] Adams, supra note 9.

[13] See e.g., Garcia-Bengochea v. Carnival Corp., No. 1:19-cv-21725-JLK, 2019 WL 4015576, at *1284 (S.D. Fla. Aug. 26, 2019).

[14] Adams, supra note 9.